No. 28600 | Neb. | Nov 10, 1933
This' is an action against defendant to recover $10,000 in damages for alleged negligence resulting in personal injuries to plaintiff. Defendant with his wife and son in a Buick sedan and plaintiff and her husband in a Ford coupé were headed for Omaha on the paved highway from Lincoln after dark on the evening of November 26, 1981. Plaintiff was the guest of her husband who was driving the Ford behind defendant. Three or four miles beyond Gretna when the Ford was going directly north down grade from the crest of a long hill, it struck the Buick from the rear and as a result of the impact plaintiff, who was seated beside her husband in the Ford, was thrown forward and injured. It was alleged in the petition that the Ford “was proceeding down the grade on the pavement on the right-hand side thereof in a prudent and cautious manner;” that defendant, in violation of law, left his Buick on the pavement without a rear light and without leaving a passage-way 15 feet wide on the left-hand side of the main traveled highway, thus causing the collision and the resulting injuries.
The answer was a general denial and a plea that plaintiff’s injuries, if any, were the proximate result of her own gross negligence concurring with the gross negligence
Upon a trial of the issues the jury rendered a verdict in favor of defendant. From a judgment of dismissal plaintiff appealed.
It is argued as a ground. of reversal that negligence of the husband was not imputable to his wife; that there was no negligence on her part, and that the trial court erred to her prejudice in submitting the issue of contributory negligence to the jury. The evidence on behalf of plaintiff tends to prove that at the time of the collision defendant’s Buick was standing on the slippery pavement in the dark without a rear light, while snow was falling and that there was not on the left-hand side the free passage-way of 15 feet required by statute. Comp. St. Supp. 1931, sec. 39-1154.. On the contrary the evidence adduced by defendant tends to prove that he did not stop his Buick but was driving it carefully down the hill until it was struck in the rear by the Ford; that his rear light was shining; that he was on the right-hand side of the pavement; that the impact temporarily extinguished alike the headlights and rear light. Defendant’s son testified he was in the back seat of the Buick looking out at the rear window and saw the red rays of the rear light on the snow. If defendant and his witnesses told the truth, a question for the jury, there was no negligence whatever on his part. There is also testimony tending to prove the following summarized facts: Between Lincoln and the place of the collision plaintiff and her husband had stopped two or three times to clear the windshield of wet snow. The automatic wiper kept a clear view in front of the driver. Vision through the windshield was partially obscured in front of plaintiff but she could see ahead at the lower edge of the windshield. The headlights were on. Visibility was good for 100 feet. The windshield was wiped at Gretna and was clear between there and the scene of the accident. The speed of the Ford during the trip from Lincoln was perhaps 25 miles
It is further complained that the trial court, in giving an instruction on comparative negligence, erred by confusing the ratio of damages to negligence. In this respect the instruction related to the measure of recovery and the error did not prejudice plaintiff for the reason that the jury found she was not entitled to recover damages in any amount.
Other rulings in giving and refusing instructions are criticized, but the entire charge to the jury, when considered as a whole, does not affirmatively show error prejudicial to plaintiff. Challenged rulings on evidence are likewise free from harmful error.
Affirmed.